Czech Republic: New legislation on whistleblowing?

22.06.2016

Despite recommendations by international organisations, Czech legislation on whistleblowers is very fragmentary. The current protection of whistleblowers, i.e. employees of an organisation who inform competent institutions of illegal or unethical practices in that organisation, is only dealt with in the Act on Banks, the Act on Savings and Credit Cooperatives, the Capital Market Undertakings Act and the Civil Service Act (or more precisely in the Government Decree issued to implement the Civil Service Act). Some vague protection of whistleblowers is also provided by the general provisions of the Labour Code and other regulations, which, however, do not specifically address the protection of whistleblowers as such. Currently, two further acts are in preparation, which aim at higher labour- law protection of whistleblowers of all employers, whether in the private or public sector.

In its policy statement concerning the anticorruption area, the Czech Government has committed itself to the adoption of a legislative solution to protect whistleblowers. According to the Action Plan to Fight Corruption, a draft of legislation protecting whistleblowers was to be prepared in the second half of 2015. Such draft, developed on the basis of the Action Plan, was submitted to the Government by the Minister for Human Rights in April 2016. The draft considers different versions of a legislative solution to protect whistleblowers, and recommends the express inclusion of the protection of whistleblowers and the ban on any retaliation measures into the relevant regulations. The draft states that it is not necessary to adopt a separate comprehensive law on this matter, and that an amendment to employment and civil-service regulations will suffice.

Only that disclosure (notice) should be protected, which was made in good faith and in respect of which the public interest in reporting misconduct outweighs the harm suffered by the protected interests concerned (e.g. the duty of loyalty or confidentiality). This can, however, cause legal uncertainty to employees, since they will have to compare and assess the interests before making a disclosure. It is therefore proposed to explicitly ban any adverse actions against an employee who has reported misconduct, but the protection of such employee should be dealt with in court proceedings, i.e. after the employer has taken illegal retaliation measures (e.g. dismissal, reassignment). A shared burden of evidence should be introduced in court proceedings: the employee will have to prove that the measure has been adopted against him, and the employer will have to prove that it has taken such step for legitimate reasons, without any intention to retaliate.

This April, an “alternative” draft of an act on the protection of whistleblowers, who disclosed criminal actions, against illegal retaliation by the employer was submitted to the Government. This draft comes from the Minister of Finance. The act should apply to workers in employment and in the civil service, to professional soldiers and to members of other security forces. However, protection should be granted only to whistleblowers who have disclosed listed offenses (e.g. corruption crimes, rape, fraud); reports on other criminal acts, administrative torts and other illegal misconduct are not to be protected. This apparently contradicts international recommendations and unjustifiably discriminates between disclosures of equally serious crimes, by granting protection to only some of them, and denying protection to others (while the selection of crimes seems to be random). The draft suggests that whistleblowers should be protected from the moment they make the disclosure. Whistleblowers should have an opportunity to contact the Prosecutor's Office on an anonymous basis, through a dedicated website. Having assessed the disclosure, the state prosecutor may offer the disclosing person protection – i.e. give him the status of a protected whistleblower – and the employee may then give up his/her anonymity. Once the employee gets such status, the employer may not end his employment or service relationship by notice of termination or without notice, nor may it transfer him to another job without the consent of the regional branch of the Labour Office. Moreover, if such whistleblower is dismissed or reassigned, the Ministry of Finance might compensate him, upon his request, for loss of income and non-monetary harm, and might then claim such compensation from the employer.

It should be noted that both of the above drafts contain a number of uncertainties and controversial aspects. It is not clear now if any of them will come into effect, and what the final form of the adopted legislative measures will be.

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